U.S. v. Stoterau, No. 07-50124 (4-29-08). Can mind control be a condition of supervised release. It seems that courts are requiring it in sex cases, especially child pornography, when it comes to supervised release conditions. In this case, defendant plead to transporting child pornography after an investigation and charges revolving around pandering and internet sex photos of an underage boy. The court gave an adjustment for "commission of a sexual act." He received a 151 mos. and 5 years of SR. This was appealed, arguing that it does npt fall within the charge, and the numerous conditions of supervised release, covering sex testing, polygraphs, controls on who he meets, post office boxes, and even receipt of so-called pornography. The 9th (Ikuta joined by Gould and Wallace) affirmed virtually all the sentence. The 9th upheld the adjustment for a sex act because of "relevant conduct." The sentence was also upheld as reasonable and that to the challenge that the reasoning for a Guideline sentence was merely rote, the 9th held that the court fully explained its reasoning under 3553 by mentioning the factors and saying the factors were considered as well as the Guidelines' reasoning seemed appropriate. As for the many conditions of SR, the 9th allowed polygraphing, explaining that Fifth Amendment protections still existed (immunity would have to be given), which leads to the question of whether it really can be used, or whether an invocation of the Fifth would lead to a violation of not undergoing sex therapy. The 9th also upheld Abel testing, despite its Daubert failings because, what the heck, it may help. The 9th also upheld the many conditions on whom and where and what the defendant can do, and get. It did vacate the condition against pornography, because of vagueness. The many conditions imposed are supposedly to help "sex counseling and therapy" but sure do smack of mind control and an obsession with what the defendant might do.

U.S. v. Medina, No. 05-30477 (4-29-08). This is a treatise on the Speedy Trial Act. The defendant, a member of a conspiracy, ducked and weaved through pretrial motions and continuances, and as trial was about to start, a STA violation was argued. The court found 21 days outside the STA limits, and dismissed without prejudice. The court acknowledged that 21 days of detention were a burden, but not enough to warrant dismissal with prejudice. The court also lamented the informal ways things were done, and that undoubtedly entered its calculations. The 9th (Ikuta joined by Gould and Fisher) affirmed. The opinion goes through the STA, mind-numbingly recounts the motions, and finds no abuse of discretion.

Choe v. Torres, No. 06-56634 (4-29-08). The 9th (Kozinski joined by Rawlison and Baer) uphold the extradition of a Korean businessman on one count of bribery of a public official. The 9th vacated one count due to lack of probable cause (the magistrate's order had no finds of facts supporting that count). The 9th also found that the offense -- bribery -- was recognized by both the US and Korea. There was no statute of limitations issue because the petitioner had secretly and illegally fled the jurisdiction.

U.S. v. Arnold, No. 06-50581 (4-21-08). The 9th decides whether offices at LAX may examine the electronic contents of a passenger's laptop without reasonable suspicion. The district court said "no." The 9th (O'Scannlain joined by Smith and Mosman) reverse and permit the search. The defendant was returning from overseas and going through Customs. The Customs agent had him turn on his computer, where icons appeared titled "Kodak Memories" and "Kodak Pictures." These revealed nude photographs of nude women. A more thorough search revealed photos of child pornography. The district court suppressed, finding that search was without reasonable suspicion. The 9th overturned, holding that reasonable suspicion was not required at the border, that the computer was not damaged, and that the computer was not like a human mind, but closer to a closed container.

U.S. v. Shi, No. 06-10389 (4-24-08). A disgruntled sailor, demoted from cook to deckhand, and beaten, murdered the captain and first mate and seized control of the foreign vessel. The sailor was eventually overcome (after 2 days) and locked in a cabin. The ship then set sail to Hawaii for help. Intercepted by the Coast Guard (thinking they might be seeking to illegally land), the Coast Guard quickly ascertained what was going on, and took control of the defendant. The question is whether there is jurisdiction over this foreign vessel in international waters for purposes of prosecuting the defendant. The 9th (O'Scannlain) answers "aye aye." Under the statute 18:2280 (bet that is a rare one), the U.S. has obligation under the Maritime Safety Act, and stopping piracy and maintaining order is one of them. The defendant should have known that any nation would have sought to arrest him, and therefore, he was on notice (a nexus tie) that the U.S. could seize him. That was done here. There were also no Miranda violations nor illegal searches of bunks (a warrant was requested and received). The sentence was reasonable (a departure down to 36 years).

U.S. v. Aguila-Montes De Oca, No. 05-50170 (4-28-08). Defendant won the overly-broad categorical war, but lost his own modified battle when it came to determining, under the Guidelines, whether California's residential burglary statute was a crime of violence. The 9th has already held that the state burglary statute broadens the Guidelines' generic category of burglary because the entry need not be unlawful or unprivileged. Rodriguez-Rodriguez, 393 F.3d at 857. Left undecided, and for another day, was whether the statute, encompassing liability as an accessory after the fact, was overbroad. This would happen if aider and abettor liability stretched to cover an accessory. Unfortunately for the defendant, under a modified categorical approach, he had plead guilty to a count that had facts that admitted unlawfully entering a dwelling house. The offense was a crime of violence under the Guidelines, but only because the plea proved it.

U.S. v. Mara, No. 07-30102 (4-28-08). One can lose acceptance for continued criminal acts, even if unrelated to the plea of conviction. Here, defendant plead guilty to being a felon-in-possession. While awaiting sentencing, he got into a fight in jail. This altercation led the court to determine that the defendant had failed to accept responsibility, and so he lost the two points. The 9th had previously held that continued criminal conduct related to the offense plead to could lead to denial of acceptance; this goes a step further, and allows for denial even if the continued criminal conduct is different in nature, character or degree. The 9th aligns with eight of the nine circuits that have considered this. The only conflict is with the Sixth. See U.S. v. Morrison, 983 F.2d 730 (6th Cir. 1993).

Case o' The Week: The First Plus the Fourth Plus the Fourth Plus the Ninth = 0, Arnold

It was a grim week for the Fourth Amendment. In Virginia v. Moore, __ S. Ct. __, 2008 WL 1805745 (Apr. 23, 2008), the Supreme Court held that "warrantless arrests for crimes committed in the presence of an arresting officer are reasonable under the Constitution, and that while States are free to regulate such arrests however they desire, state restrictions do not alter the Fourth Amendment's protections." Id. at *8, decision available here. In other words, under the Fourth Amendment a cop can search you for a petty offense that is merely cite-able, not arrest-able, under State law.

Not to be outdone, the Ninth issued an extraordinarily disappointing decision that takes chunks out of both the First and Fourth Amendments in one fell swoop. See United States v. Arnold __ F.3d __, 2008 WL 1776525 (9th Cir. April 21, 2008), decision available here. In Arnold, the Ninth gives carte blanche to Customs for laptop searches at international airports -- without even "reasonable suspicion." This brief decision on some tremendously important issues merits a much-closer look by an en banc panel.

Players: Great order by D.J. Dean Pregerson is reversed by Judges O’Scannlain and Milan Smith.

Facts: Michael Arnold arrived at LAX after spending three weeks in the Philippines. Id. at *1. After Customs discovered his laptop it ordered him to fire it up. Id. A Customs agent found a digital picture of two nude women (?!?), which merited a call to a supervisor and a more extensive search – ultimately producing child porn. Id.

Arnold was charged with transporting and possessing child porn. CD Cal. District Judge Dean Pregerson suppressed the search in a very thoughtful order. See United States v. Arnold, 454 F.Supp. 999 (C.D. Cal. 2006) (ord.) The government appealed.

Issue(s): “We must decided whether customs officers at Los Angeles International Airport may examine the electronic contents of a passenger’s laptop computer without reasonable suspicion.” Id. at *1.

Held: “[W]e are satisfied that reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border.” Id. at *4.

Of Note: This short opinion churns out many sweeping constitutional holdings with little or no analysis: it cries out for en banc review.

One Fourth Amendment holding is that there isn’t an expectation of privacy in a laptop akin to that in an office. Id. at *5. This assertion will be startling news for the hordes of Silicon Valley folks flying from the Ninth Circuit to the Pacific Rim. Turns out they don’t have an expectation of privacy for the location of Google’s new server farm, the I.P. of Intel’s latest chip design, or the share price for the Microsoft-Yahoo deal, if that data is on their laptop – though they do if the data is in their office. Who knew? As was true in Kelley and Forrester, in Arnold the jurisprudence of the Ninth is decades behind the realities of the most technologically-advanced Circuit.

Moreover, the decision doesn’t grapple with the very real First Amendment concerns at issue when Customs agents rummage through intensively private laptop data. Instead, it summarily adopts a particularly unpersuasive Fourth Circuit (?!?) decision, Ickes. Id. at *6. In the Ninth, the First deserves more than two paragraphs parroting the Fourth.

How to Use: A ND Cal AUSA once candidly admitted that she had Customs troll for single men coming back from Asia with laptops at SFO – these passengers earn an automatic referral to Secondary and an order to boot-up. Since the Ninth guts First and Fourth Amendment protections in Arnold, what say we try the Fifth Amendment? Defenders in districts with international airports should start generating stats and seeking discovery for an Equal Protection challenge on the methodology used by Customs for these laptop searches.

Also, what happens when a passenger is ordered to reveal a password to enable a laptop search? (Like a traveler who believes more in the protections of TrueCrypt (right), that of the Constitution). Isn’t the compelled disclosure of a password “testimonial” – and therefore a Miranda disclosure? At least one magistrate thinks so. See In re Boucher, 2007 WL 4246473 (D. Vt. 2007) (“Entering the Password is Testimonial. Compelling Boucher to enter the password forces him to produce evidence that could be used to incriminate him. Producing the password, as if it were a key to a locked container, forces Boucher to produce the contents of his laptop.”)

For Further Reading: An informal survey by the Association of Corporate Travel Executives revealed that almost 90% of its members were not aware that Customs could search their laptops and confiscate them without reason. See New York Times article here. This is probably why the Association filed an amicus brief in support of Arnold, as did Stanford’s Electronic Frontier Foundation. See Times article here. Some heavy-duty amicus support, for a privacy interest not even acknowledged in the Arnold decision . . .


Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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Counsel Required For Fair And Efficient Implementation Of The Retroactive Crack Amendment

The first step to fair and efficient implementation of the retroactive amendment to the crack drug quantity guidelines is appointment of counsel, as has occurred in most Districts. Professor Berman reports this morning here that some judges are refusing to appoint counsel for prisoners sentenced for crack crimes, leaving them to litigate for themselves against the Department of Justice’s cramped view of the sentencing judges’ discretion under 18 U.S.C. § 3582(c). During the hearings leading to the retroactive amendment, federal defenders, including myself, provided testimony before, during, and after the Sentencing Commission retroactivity hearings emphasizing the importance of counsel in assuring smooth administration and fair implementation of the amendment. Aside from administrative considerations, the complexities of the law and the need to consider new facts should require appointment of counsel.

Background To Retroactivity Of The Crack Amendment

As reflected in the Sentencing Commission’s reasons for the amendment (here), the amendment reducing the offense level by two for quantities of crack is only a partial remedy for the institutionalized over-incarceration resulting from the 100:1 powder/crack ratio. For the fourth time, the Commission has called for Congress to change the 100:1 ratio in the mandatory minimum statute; the Commission’s amendment is an intermediate step that only somewhat lessens the unnecessary incarceration by adjusting down the offense levels geared to drug quantity by two levels, pending congressional action on the ratio itself. Congress did not block the amendment, which became law on November 1, 2007.

Following the effective date of the amendment, the Commission requested comment on whether the amendment should be retroactive. Arizona Federal Public Defender Jon Sands submitted a letter on behalf of Defenders that included reference to the importance of counsel in smooth and fair implementation of the amendment (here), which was elaborated in written submissions prior to the hearing (here) and during the testimony (here at 58-78). In response to Commissioner Steer’s request regarding the FPDs’ plans for implementing the amendment, we provided a post-hearing submission detailing the approach to identifying clients, obtaining representation, and litigating § 3582(c) motions (here).

On December 11, 2007, the Commission voted to make the amendment retroactive. Along with retroactivity, the Commission provided commentary regarding implementation of the new guidelines. Attorneys need to parse the relevant statutes and the commentary to determine whether and to what extent commentary may be helpful or harmful to clients and whether adverse commentary conflicts with statutes or guidelines under Stinson. The FPD Sentencing Resource Counsel and others have provided support regarding the complex legal theories for the wide spectrum of fact patterns qualifying for a potential reduction in sentence.

Counsel Under The Criminal Justice Act

The pre-Booker case law makes clear that the District Courts have abundant discretion to appoint counsel under the Criminal Justice Act. We can hope that most courts will see the practical necessity of defense counsel. In the protocol the FPDs presented to the Commission based on the 1995 marijuana retroactive amendment, most cases were resolved with agreed dispositions negotiated between prosecutor and defender – in our District, 121 orders were signed on the first day the amendment became effective. This protocol would obviously be impossible without involvement of defense counsel: the prospect of prosecutors dealing with unrepresented prisoners would raise serious ethical questions. During the first appearance on the crack charges, the prisoner routinely requests to proceed through counsel. In the absence of a fully advised waiver, how can a prosecutor interact with an unrepresented prisoner regarding the judgment previously entered with counsel representing the prisoner?

Under the circumstances of the crack amendment, especially the complexity of the legal issues, the CJA statute should be construed as making appointment mandatory. Under 18 U.S.C. § 3006A(a)(1)(A), representation “shall” be provided to any financially eligible person charged with a federal felony. The § 3582(c) motion is under the same case number – the prisoner is charged with a federal felony, and this proceeding relates directly to quantum of punishment imposed under that judgment. And this is not mere discretionary leniency: the Commission has found that the original sentence was based on a guideline range higher than necessary to accomplish the purposes of sentencing, and Congress has required consideration of § 3553(a) factors in deciding the motion.

Constitutional Dimensions To The Need For Representation

For those District Courts that express reluctance to appoint counsel for litigation of § 3582(c) motions, we can point out that, under the post-Booker sentencing regime, the CJA should be construed to require appointment of counsel or the Constitution requires appointment based on at least three separate theories, each based in Supreme Court governing authority.

First, under the Due Process and Equal Protection Clauses, the 2005 case of Halbert v. Michigan established that, even if there is no Sixth Amendment right to appellate review, Congress, having established an avenue for review, “may not ‘bolt the door to equal justice’ to indigent defendants.” In Halbert, the state refused to appoint counsel for defendants who wanted to appeal from guilty pleas, including Mr. Halbert, who claimed “his sentence had been misscored” and that he needed counsel to correct the error. Justice Ginsberg, writing for the Court, held that basic fairness required appointed counsel based on the complexities of the law, the difficulties of litigating from prison, and the practical consideration that many prisoners are poorly educated, mentally ill, and otherwise ill-equipped to represent themselves. These same factors apply to § 3582(c) motions.

Second, under the Sixth Amendment, the previous cases regarding the right to counsel on § 3582(c) motions do not address key Supreme Court precedents and have been factually superseded by post-Booker issues. In Mempa v. Rhay, the Supreme Court held that Gideon and its progeny “clearly stand for the proposition that appointment of counsel for an indigent is required at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected.” In Mempa, the Court held that the Sixth Amendment right to counsel applied at a deferred sentencing proceeding. “Substantial rights” are at issue where the Commission has determined that the guideline range was greater than necessary and that a potential reduction of years of incarceration – the Commission estimates an average of 27 months – is at stake when the District Court decides the motion. And the Supreme Court recognized in Glover, in evaluating an ineffective assistance of counsel claim based on Guidelines sentencing, the defendant establishes prejudice if there was any guideline error to the defendant’s detriment.

Booker also changed the legal context by eliminating the portion of the sentencing appeals statute making the Guidelines mandatory. In its place, the Supreme Court in Rita outlined the necessary reasonableness review, which is predicated on a correct initial assessment of the applicable guideline range. Since Rita, the Court in Gall and Kimbrough expanded on the sentencing judge’s authority to consider sentences outside the applicable range, again emphasizing the need for an initial correct determination of the Guidelines factors. Given the explicit reference in § 3582(c) to § 3553(a), the same considerations are in play in the resolution of a motion based on the new applicable guidelines range following the retroactive crack amendment. The post-Booker cases emphasize the importance of establishing, in the first instance, correct calculations of the guideline range, which – for crack cases – is a new starting point but not necessarily the end point given the need to consider § 3553(a) factors.

The factual context for a Sixth Amendment analysis has also changed since Booker. In that case, the Court held that the federal sentencing guidelines, as implemented in every District since 1990, violated the Sixth Amendment right to jury trial. Prospectively, the Court remedied the Guidelines’ unconstitutionality by severing aspects of the Sentencing Reform Act to make the Guidelines advisory. Booker establishes that, for prisoners sentenced prior to January 12, 2005, the consideration of § 3553(a) factors required by § 3582(c) has never previously been undertaken. These factors, especially in light of Mempa and Glover, militate in favor of appointment of counsel under the Sixth Amendment.

Third, under the Due Process Clause, even if § 3582(c) motions are not deemed a critical stage of a criminal prosecution under Mempa, the balance of interests and risks of error require counsel as a matter of procedural due process. In the post-Booker era, virtually no prisoner can competently litigate the § 3553(a) factors without the assistance of counsel. As Justice Ginsburg pointed out in Halbert, prisoners suffer from a number of deficits that interfere with the ability to effectively advocate for themselves. On a motion to be decided based on § 3553(a) factors, the litigant would have to be conversant not only with the record at sentencing, not only with any intervening aggravating or mitigating factors, but also with the effects of Booker, Kimbrough, and Gall. The motion to reduce, according to the new commentary, involves considerations of dangerousness and post-sentencing conduct that require investigation by counsel to address, and, if necessary, to rebut prosecution arguments based on these factors. With an average of over two years at stake, and no countervailing legitimate interest in a sloppy and incomplete presentation to the court, the balance of interests would require counsel under the standard articulated in Gagnon v. Scarpelli:counsel is required if the reasons for a mitigated disposition “are complex or otherwise difficult to develop or present.”

Counsel Is Essential For Fair Implementation Of The Crack Guidelines

The balance of interests, especially given the length of incarceration at issue and the complexities of the federal Guidelines system, require counsel’s involvement to assure efficient implementation of the retroactive amendment and basic fairness to the individual prisoner. Based on discretion, most District Courts are appointing counsel because, as noted in Halbert, counsel’s involvement, by making applications easier to comprehend and more efficient, is helpful both to defendants and to the courts. The FPD’s Sentencing Resource Counsel have addressed counsel issues and, with potential assistance from volunteers on the Criminal Justice Act panel, Defenders should be prepared to litigate, if necessary, the appropriateness of counsel’s participation, both on statutory and constitutional grounds. As Judge Barbara Lynn from Dallas told the Detroit Free Press, “The government is represented by counsel; I’m making sure the defendant has counsel, too.”

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon

Case o' The Week: Government takes a "crack" at Judge Patel, Grissom

Northern District of California Judge Marilyn H. Patel (right) Did The Right Thing in Grissom: departed downwards from Career Offender guidelines, and focused on crack drug amounts in the count of conviction, instead of the discharged counts, at sentencing. United States v. Grissom, __ F.3d __, 2008 WL 1722813 (9th Cir. April 15, 2008), decision available here. Her sentence drew a half-hearted opposition from the line AUSA, and then an appeal to the Ninth.

In Grissom, the Ninth reverses, adopts a good appellate standard of review for the defense, and gives a few extra pointers on how to cut the defendant a break on remand for re-sentencing. The defense bar could use more government appeals like this . . . .

Players: Hard- fought appeal by ND Cal CJA counsel Geoffrey Rotwein.

Facts: Grissom was charged with three, ounces-quantity crack sales. Id. at *1. He pleaded guilty pursuant to a written agreement to the second count charging 49 grams: two other counts were dismissed. Id. (NB: Because the plea was to under fifty grams, it avoided the ten-year mandatory minimum. Id. at *6 & n.4).

At sentencing, ND Cal. District Judge Marilyn H. Patel rejected the drug amounts on the other two dismissed counts as relevant conduct and departed downwards from the Career Offender guidelines, for a sentence of 87 months. Id. at *2. The government’s pro forma complaint was, “I would simply note the government’s objection on the record.” Id. *2. (A lovely voce sotto “objection” by departed AUSA Michelle Morgan-Kelly).

Issue(s): “The government contends that the district court erred in rejecting quantities of crack cocaine from two dismissed counts when calculating Grissom’s base offense level under the United States Sentencing Guidelines (“Guidelines”). It argues that the quantities, properly considered, would have resulted in a Guidelines range 21 months higher than the sentence imposed.” Id. at *1.

Held: “We vacate Grissom’s sentence and remand.” Id.

Of Note: A sub-issue in this appeal is the adequacy of the government’s brief objection to preserve its appeal. Here, the government argued that Judge Patel’s “terse” rejection of its objection meant that it was preserved. Judge Tashima writes that, “Despite the seeming facial inadequacy of the objection, we agree with the government that where the district court indicates that it understands the basis for the objection and that further argument is not desired, and the record reflects this understanding, a general objection may suffice to preserve an issue for appeal.” Id. at *3.

Happily for AUSA Morgan-Kelly, she’s now 3,000 miles away and won’t return for Grissom’s re-sentencing. Sadly for the ND Cal USAO, some poor schlub from that office will have to drag into Judge Patel’s courtroom and try to explain why the government took her up after its effective “wink and a nod” at sentencing. That prospect is so daunting that it almost makes you feel bad for this new AUSA. Almost.

How to Use: The main holding of Grissom is an old (and hated) sentencing chestnut: drug amounts from dismissed counts can figure into relevant conduct. Id. at *5. (Can -- but not must. Judge Tashima describes ways to battle this injustice in the decision).

A more interesting aspect of the opinion is how the panel deals with appellate review post-Booker (and post-Rita, Gall, Kimbrough and Carty). This review is a two-step process: first for procedural error, and second for substantive reasonableness. Id. at *4. Errors in guideline calculations fall under the first step. What is the appellate standard of review for this first step, after Gall? Grissom resolves that question for the first time in the Ninth: the appellate court reviews “the district court’s interpretation of the Sentencing Guidelines de novo, the district court’s application of the Sentencing Guidelines to the facts of the case for abuse of discretion, and the district court’s factual findings for clear error.” Id. at *4 & n.2.

This little aside is a big deal for the defense. The defense bar challenges guideline calculations much more frequently on appeal, and the old, less-deferential de novo standard is much better than the “abuse of discretion” standard used for the second-step "substantive reasonableness."

For Further Reading: How does this panel really feel about District Judge Patel’s sentence of Mr. Grissom? How about Judge Tashima’s own “wink and a nod,” reminding Judge Patel that on remand Grissom now benefits from the new, more-lenient crack guidelines? Id. at *7. Or how about Judge Tashima’s observation that, after Kimbrough, there would be no problem with a § 3553 sentence that departed downwards because of the crack/powder cocaine discrepancies? Id. The government appealed and reversed Judge Patel over a 21-month difference in the sentence -- one suspects that Judge Tashima's pointers could pretty easily offset this difference on remand, if the District Court were so inclined . . . .

For the full scoop on the sea changes underway in crack sentencing, visit the wealth of resources at the Federal Defender website here.


Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org


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U.S. v. Reveles-Espinoza, No. 05-50905 (4-15-08). Defendant cultivated marijuana. The government used this as an aggravated felony to deport him. He came back, was caught, and now argues that cultivation is not an aggravated felony because the state statute (California) lists such things as cultivating, planting, harvesting, drying and processing. Drying? How can drying be a drug offense as defined. The fed statutes do not list "drying" as part of the process. The 9th, however, said that argument was all wet as drying is part of the process, and cites a string of cases that so hold. Defendant had plead to that charge, and it was for the process. He is also liable under an aiding and abetting theory. The 9th also found that defendant had received notice that his conviction could deprive him of eligibility for cancellation of removal.

U.S. v. Grissom, No. 06-10688 (4-15-08). The government used a CI to complete multiple sales of crack. The defendant faced three counts, but plead to only one. The PSR used as relevant conduct all the sales, and found that the defendant was a career offender. This bothered the court, who expressed concern about relevant conduct, and thought that the career offender determination was pumped up. The government objected, and the court groused that "...You know what you can do with that. Take it to the appellate court...." Well, the government did. The 9th agreed that the court, under the guidelines, had to consider the relevant conduct, and that Gall requires an accurate guideline calculation. The 9th (nudge, nudge) indicated (wink, wink) that the district court under Gall/Kimbrough could use all the factors and could be cognizant of the crack/powder disparity.

U.S. v. Garcia, No. 05-30356 (4-17-08) (amended). The 9th came to its jurisdictional senses in this amended sentencing appeal decision. The first opinion affirmed the sentences, finding that the court lacked jurisdiction to even hear an appeal because of the 11(c)(1)(C) plea. In an amended opinion, the 9th agreed that it had jurisdiction to hear an appeal even from an 11(c)(1)(C) plea agreement that set a range. The 9th did not buy, this time, the argument that it had no jurisdiction to examine the reasonableness of the sentence, because the defendants had not "expressly" waived their appeal. Moreover, the 9th recognized that "a valid guilty plea does not deprive the court of jurisdiction." The panel quoted the 9th's en banc court's decision in U.S. v. Castillo, 496 F.3d 947, 949 (9th Cir. 2007), which had been issued four months before the panel's original opinion. Yes, the defendants' sentences were still affirmed, but the jurisdiction to examine pleas and waivers was vindicated.

AFPD Steve Sady of the Oregon FPD filed an excellent amicus brief on behalf of the Ninth Circuit federal public and community defenders on this important point.

U.S. v. Ibrahim, No. 07-50153 (4-14-08). Defendant was convicted of conspiracy in regards to ecstasy. He got 188 mos. in prison, fined $4.5 million, and ordered to pay $4.5 million in restitution. One little hitch in the government's charges against him, which included forfeiture of $489,829.73 that was found during the arrest and search. The forfeiture notice was sent to defendant's cousin, John. The government confused the two. So, John got notice but not defendant (Tamer). Defendant then filed for return of property five years later under Fed. R. Crim. P. 41(g). The government argued that there was actual notice or at least implied because of records of meeting between John and Tamer. The court, applying a preponderance of evidence standard, agreed and dismissed. The 9th (Wallace) reversed, holding that the standard was summary judgment under a civil analysis under Fed R Crim P 12(b)(6). The issue is whether there is a material issue of fact, and here there was. Oh yes, defendant argued that he was really entitled to $981,485 but the 9th held that it was a typo, and what was $485 was transcribed as $485,000 and added to the actual amount found in the apartment and in the safe.

U.S. v. Rising Sun, No. 06-30614 (4-14-08). The defendant murdered two women in an isolated part of the Crow Indian Reservation. Indicted on first degree murder, he subsequently pled to two counts of second degree murder, with the possibility that the sentences would run consecutively. He got two life terms, but appealed. He argued that in sentencing, the court erred in adjusting for vulnerable victim (+2 levels) and obstruction (+2). The vulnerable victim adjustment was for the murders taking place in a remote part of the Reservation; and the obstruction for the defendant threatening witnesses before the investigation started to remain silent. The district court also gave a +3 level upward departure for extreme conduct. The 9th (Gould) reversed, holding that the record did not support the vulnerability based on remoteness. There were no facts developed that showed the victims were lured there, or had some vulnerability in the isolation that was part and parcel of, say, their job. They were just with the defendant there. The 9th stressed that remoteness could be a basis, but a factual basis had to be laid. As for obstruction, the 2003 Guideline had a temporal dividing line, subsequently erased, and therefore, under ex post facto, the obstruction occurred before an investigation started. The sentence was vacated and remanded.

Congratulations to Mark Werner and Tony Gallagher of the Montana Federal Defenders (Billings) for the win.

U.S. v. Perdomo-Espana, No. 07-50232 (4-14-08). Defendant suffered from diabetes. This led to a stroke while he was in a federal prison. Upon his release, he was departed, with a small amount of insulin. That was soon used up, and the Mexican available insulin proved ineffective. Defendant felt he had to return. Turned away at the POE, he tried to sneak in and was caught. He argued necessity at trial, and asked for a jury instruction. The court denied (although the court allowed defendant to testify as to why he did come back). On appeal, the issue was that jury instruction, with the question whether the necessity defense requires an objective standard. The 9th found that it did, rather than a subjective one (which focused of the defendant's own state of mind). The giving of the instruction based on a factual basis was then resolved under an abuse of discretion standard. The 9th affirmed the conviction.

U.S. v. Horvath, No. 06-30447 (4-9-08) (order). This is an order denying rehearing en banc. The panel decision reversed a conviction for a material misstatement under 1001 to a probation officer in the PSR. The panel had held it was not material because the probation officer was required under Fed. R. Crim. P. 32 to state the defendant's version or statements. The dissents argue that the probation officer is not just a conduit but assesses statements and that it plays into sentencing. It also points out that the 9th is now in conflict with the 4th on this issue. This issue will percolate and the Supremes may step in.

Richter v. Hickman, No. 06-15614 (4-9-08). The 9th affirms a denial of a petition in a LWOP murder case. This was a murder either over the theft of guns and belongings or self-defense. The jury convicted. In this challenge, petitioners raise an IAC claim among others, arguing that trial counsel should have investigated further and used different firearm and forensic experts. These experts would have supported the self defense theory through testimony about the gun-in-question's operation, and the bullets. The 9th held that the claim failed on prejudice, as the testimony, even if presented, would not have changed the thrust or strength of the defense. The 9th also found no Brady violations.

U.S. v. Vasquez-Ramos, No. 06-50553 (4-10-08). The 9th affirms the convictions of defendant in an eagle feather case. Bald and gold eagles are protetced birds. The defendant alleges that he, as an American Indian, needs the bald and golden eagle feathers for religious purposes. The 9th goes through the Religious Freedom Restoration Act, detailing how feathers and talons can be requested from the Department of the Interior. There is a wait, but they are available. The 9th has held in Antoine that the RFRA was not an unconstitutional restriction, and survives scrutiny. The defendant argues that the Supremes have altered the legal landscape with recent decisions on importation on some feathers, but the 9th did not so find. The 9th also did not buy that the removal of bald eagles from the endangered list rendered the protection of the Lacey Act moot. The 9th again said "no" because the eagles are a symbol of the country, and they are still protected.

U.S. v. Sullivan, No. 06-50710 (4-11-08). This white collar case boils down to this: entertainment and retail companies paid the defendants to place and moniter ads in media outlets. The defendants billed the companies, kept the funds for 60+ days and then paid the outlets. The problem, and convictions, arose from the fact that the companies and media outlets never agreed to such a "float" and when times got bad, really bad, like bankruptcy bad, the defendants used the float to pay other bills (arguably private) rather than the companies. The defendants, and their bankruptcy lawyer (a little sheltering was alleged in numerous counts) were charged with every sort of white collar charge, including money laundering. The appeal focused on insufficiency of evidence, and primarily on the argument that there was no scheme, just desperate businessmen trying to borrow from Peter to pay Paul. The 9th, using the "in a light most favorable" standard affirmed the convictions, linking up the shennigans as a means to squirrel away funds, and the use of the float without approval. Severence was also not deemed prejudicial as the jury could compartmentalize.

Case o' The Week: Lying to Probation Not A Crime (in the Ninth), Horvath

O.K. -- a defendant shouldn't lie to a Probation Officer . . . but is it really a crime to do so? Not in the Ninth, when the lie is about information that must be reported as part of the PSR process and the government charges a "false statement" under 18 USC Section 1001. See United States v. Horvath, __ F.3d __, 2008 WL 943951 (9th Cir. April 9, 2008), Ord. Denying Rehearing En Banc, order available here.

Players: Judge Graber authors original decision, Rymer dissents. 

Judge Graber writes denial of rehearing order, joined by Wardlaw, Gould, and Paez.

Chief Judge Kozinski, and Judges Bea, O’Scannlain, Kleinfeld, Tallman, Bybee and Callahan dissent from denial of rehearing.

Facts: During a federal PSR interview, Horvath claimed that he had served with distinction in the Marine Corps. United States v. Horvath,  492 F.3d 1075, 1076 (9th Cir. 2007). Partly because of this service, the judge imposed a lenient sentence. Id. 

In fact, Horvath lied about his Marine service. When this was discovered (after sentencing) he was indicted for making a false statement to a probation officer under 18 USC § 1001. Id. at 1076-77. Horvath moved to dismiss the indictment for failing to state an offense; when that was denied, he entered a conditional plea. Id. at 1077. 

In July of ‘07, Judges Graber and Pregerson reversed, in the holding recounted below. Id. at 1076. A Ninth Circuit judge sought rehearing en banc.

Issue(s): “We must decide whether the exception in § 1001(b) for ‘statements . . . submitted by [a] party . . . to a judge’ encompasses a false statement submitted to the judge in a presentence report (“PSR”), when the defendant in a criminal proceeding made the false statement to the probation officer during the defendant’s presentence interview, rather than to the judge directly.” Id. at 1076 (emphasis added). 

Held: “We hold that when, but only when, the probation officer is required by law to include such a statement in the PSR and to submit the PSR to the judge, the statement falls within the exception in § 1001(b).” Id. 

Of Note: The votes of Judges Graber and Pregerson are interesting in Horvath. First, on criminal cases Judge Graber seems more frequently among the company of these en banc dissenters. See, e.g., United States v. Davenport, __ F.3d __, 2008 WL 732491 (9th Cir. Mar. 20, 2008) (Graber, J., dissenting), blog available here. 

And Judge Pregerson is deservedly proud of his distinguished service as a Marine (as are Judges Tashima, Hawkins, and Beezer). Horvathlied about receiving the purple heart commendation while in service; Judge Pregerson earned the real deal when he was shot and severely wounded on Okinawa. Judge Pregerson’s vote to reverse the conviction in Horvath is commendable – this particular lie by the defendant must have been particularly galling.  (Just a guess -- not a former clerk, inside-insight).

     The order denying rehearing en banc is worth a read, because it reveals a spectrum of views of Probation in the Ninth. For the majority (which includes Graber, Wardlaw, Gould and Paez), a P.O. who reports core information in a PSR is serving as the “eyes and ears” of the Court. If a lie to the Court isn’t a § 1001 “false statement,” neither is a lie to the P.O. Horvath, 2008 WL 943951, *2-*3. (Query whether Judges Pregerson’s, Wardlaw’s and Paez’s previous district court experiences provide special insight into the role of P.O.’s ?)

     By contrast, a conservative block of dissenters protest that P.O.’s actively evaluate information included in a PSR, and are not mere conduits of information to the sentencing court. Id. at *3. Only Judge Kleinfeld previously served as a district court judge in this block. (President W. Bush has not looked to district courts for his Ninth nominees).

How to Use: In his dissent, Judge Bea proclaims, “The majority’s holding encourages defendants to lie during the presentence investigation.” Id. at *8. True – for a truly stupid and foolish defendant. A lie to Probation could easily cost two “obstruction” levels. See USSC § 3C1.1. Such a lie could also jeopardize the three “acceptance” levels. See § 3E1.1 comment. n.1(a). Finally, such a lie could sour a § 3553(a) sentence in ways that would be undetectable (and essentially unreviewable). The dissent is unpersuasive: as any savvy district judge (and prudent defense attorney) knows, even if § 1001 is unavailable there are still plenty of hammers left with which to pound a defendant who lies to a Probation Officer.

For Further Reading: The dissenters rely heavily on a Probation Manual from “jnet” (a secure website not available outside of the judiciary). Id. at *6, citing http://jnet.ao.dcn.img/assets/5661/.  This is “Monograph 107,” Probation’s bible, and is a revealing read if you can talk a P.O. or AFPD into sharing a copy (it is also available at district court libraries). 

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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Case o' The Week: Beware of the Swedish Drop, Stringer

Portland Chief District Judge Ancer Haggerty (left) writes a compelling decision detailing how the Oregon United States Attorney's Office abused civil SEC proceedings while it really developed its criminal case, and dismisses the indictment. Great stuff; brims with righteous indignation and a cause for much celebration -- until it was reversed in a very disappointing decision from the Ninth. United States v. Stringer III, __ F.3d __, 2008 WL 901563 (9th Cir. April 4, 2008) (decision available here).

Players: Judge Schroeder authors; Silverman & Bybee.

Facts: The SEC began investigation of a camera company, then starting working with a USAO – without revealing the cooperation to counsel for the company or defendants. Id. at *1 - *2. The SEC did provide a stock form, the “1662,” that warned evidence would be shared with prosecutors. Id. at *3. SEC counsel, however, refused to give a straight answer when asked if criminal proceedings were underway. Id. at *3-*4.

Meanwhile, one defense counsel represented several individuals and the company. Id. at *4. To curry favor for the company she disclosed incriminating information to the SEC about the (intriguing-sounding) “Swedish Drop Shipment” – information that she had learned from her representation of one of the individuals. Id. at *4. Predictably, the “Swedish Drop” showed up in the later criminal indictment against the individual defendant. Id. at *5. The district court dismissed the indictment.

Issue(s): 1. Fifth Amendment: “The defendants argue that the district court properly held that the use of the evidence obtained by the SEC in a criminal prosecution would violate defendants’ Fifth Amendment privilege against self-incrimination.” Id. at *6.

2. Due Process: “The defendants next contend that the district court properly concluded that the government used the civil investigation solely to obtain evidence for a subsequent criminal prosecution, in violation of due process.” Id. at *7.

3. Evidence from Conflicted Attorney: “The district court concluded that the government violated defendant Samper’s due process rights when it obtained evidence about the ‘Swedish Drop Shipment’ from Samper’s attorney, knowing that she had a conflict of interest.” Id. at *10.

Held: 1. Fifth Amendment: “The SEC Form 1662 used in this case alerts SEC investigative witnesses that the information can be used in a criminal proceeding. Defendants were on sufficient notice, and so were their attorneys . . . . Defendants have forfeited any claims that the use of their testimony against them in the criminal proceedings violates their privilege against self-incrimination.” Id. at *7 (internal citation and quotations omitted);

2. Due Process: “It is significant to our analysis that the SEC began its civil investigation first and brought in the U.S. Attorney later . . . . We must conclude the SEC interviewed the defendants in support of a bona fide civil investigation. There was no violation of due process.” Id. at *8.

3. Evidence from Conflicted Attorney: “We have held that the government’s asking a defendant’s former attorney to turn over privileged information does not constitute deliberate intrusion on the part of the government when the attorney complies . . . For similar reasons, there was no deliberate government interference here.” Id. at *11.

Of Note: The tone of Stringer is remarkable – it is so flat, and so placid, that it reads like an opinion on a contract dispute. Where’s the, “while we are troubled by the conduct of government, we nevertheless conclude . . . .?”

For a thoughtful and forceful discussion on really happened in the case, read District Judge Haggerty’s decision that was reversed by the Ninth: 408 F. Supp. 2d 1083 (D. Or. 2006). Judge Haggerty lays out in great detail how the SEC was used as a stalking horse by AUSAs. “The USAO spent years hiding behind the civil investigation to obtain evidence, avoid criminal discovery rules, and avoid constitutional protections.” Id. at 1089. The dissonance between the facts and tenor of Haggerty’s decision, and the soothing defense of the SEC in the Ninth’s decision, is striking.

How to Use: For better or worse, Stringer is the lead Ninth Circuit case on the relationship between parallel civil and criminal prosecutions, and when that relationship crosses the due process line. It is an interesting idea for other contexts as well – like ICE investigations that are fronts for § 1001 (false statement) prosecutions. Id. at *6.

For Further Reading: After Stringer, there’s a lot of white collar folks spending a lovely spring weekend inside, reading and re-reading SEC Form 1662 and wondering about that last SEC deposition. To review this masterpiece yourself, visit the SEC webpage here.



Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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U.S. v. Smith, No. 05-50375 (3-31-08). Defendant argued that the evidence did not cut both ways because of the jury instruction. The 9th held it did. Defendant was charged with assault with a dangerous weapon. The charge arose from a prison fight. The dangerous weapon was supposedly a knife fashioned from melted plastic utensils and Styrofoam that was used to stab inmate. The knife broke, and the wounds were merely minor cuts. A prison medical assistant (who had failed his medical board exams twice), however, opined that it could have inflicted fatal wounds and therefore was dangerous. The jury instructions given stated that a prison made knife could be a dangerous weapon if used in manner that caused capable of causing death or serious bodily injury. The 9th (O'Scannlain joined by Jones) affirmed, holding that the instruction was not ideal, but that the instruction stating that the prison made knife was a dangerous weapon if used to cause death or serious injury apparently did not shift the burden of proof from the government. Rather, there was a link between the weapon used and the need for the government to prove that it was a dangerous weapon beyond a reasonable doubt. A following instruction stating that the weapon had to cause certain injuries could be viewed as clarifying. The testimony supported such a link, and went to sufficiency too. D. Nelson dissented, arguing that the defining of the dangerous weapon used as the prison made knife undercut the burden the government had.

U.S. v. Stringer, No. 06-30100 (4-4-08). A supposedly bad faith investigation by the SEC and US Atty. An outraged district court that the government deceived defendants. Suppression of evidence because of atty-client interference. Too good to be true, or at least held up on appeal? Of course. The 9th (Schroeder joined by Silverman and Bybee) reversed the dismissal because, although the spade work was all done in the civil investigation, the form letter sent to defendants and counsel did state that the information could be used in a criminal prosecution. Such dual track investigations do not violate due process, and there was not bad faith here because, after all, the civil investigation started first. The government was not exactly forthcoming, keeping the criminal investigation secretive, but that was the government's prerogative. As for the attorney-client interference, the government got the information from an attorney freely, and did not exploit any conflict she had.